CJEU - C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D

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Date of Decision: 
09-11-2010
Citation: 
C-57/09 and C-101/09
Court Name: 
Grand Chamber of the CJEU
Relevant Legislative Provisions: 
International Law > 1951 Refugee Convention > Art 1A
International Law > 1951 Refugee Convention > Art 1F
International Law > 1951 Refugee Convention > Art 33
Council of Europe Instruments
Headnote: 

These joined cases concerned two Applicants who were denied protection in Germany on the basis of the exclusion provisions in the Qualification Directive.  Upon appeal the German Courts found that even if they were excluded under the Qualification Directive they may still entitled to the right of asylum recognised under Article 16A of the Grundgesetz. The CJEU, in examining Article 12, the exclusion provision in the Qualification Directive, found that the fact a person was a member of an organisation which is on the EU Common Position List 2001/931/CFSP due to its involvement in terrorist acts, does not automatically constitute a serious reason to exclude that person. Exclusion is not conditional on the person concerned representing a present danger to the host Member State or on an assessment of proportionality.

Facts: 

B (C-57/09) claimed asylum in Germany for supporting armed guerrilla warfare in Turkey and after having confessed to killing another prisoner after being sentenced to life imprisonment in Turkey. He suspected the other prisoner was an informant. The German Bundesamt rejected his application for asylum on the basis that he had committed a serious non-political crime. Later the Administrative Court annulled that decision and said his removal to Turkey was prohibited. The Higher Administrative Court heard the Bundesamt’s appeal and had a different interpretation of the exclusion clauses hence why a reference was required.

In the case of D (C-101/09), the Applicant claimed asylum on the basis of his leaving the membership of the PKK where he was a senior official and a fighter. Since then he had received threats. Firstly the Bundesamt granted him asylum and then revoked it 3 years later on the basis of committing a serious non-political crime before he entered Germany. The German Court firstly annulled the revocation decision and the Bundesamt appealed this decision which was firstly dismissed by the Higher Administrative Court and subsequently appealed on point of law to the Bundesverwaltungsgericht (Federal Administrative Court).At this stage proceedings were stayed and the Court asked the following questions to the CJEU:

(1)      Does it constitute a serious non-political crime or an act contrary to the purposes and principles of the United Nations within the meaning of Article 12(2)(b) and (c) of [Directive 2004/83] if

  • the person seeking asylum was a member of an organisation which is included in the list of persons, groups and entities annexed to the … Common Position [2001/931] and employs terrorist methods, and the appellant has actively supported that organisation’s armed struggle? (Case C-57/09)
  • a foreign national was for many years involved as a combatant and an official – including for a time as a member of its governing body – in an organisation (in this case, the PKK) which repeatedly employed terrorist methods in the armed struggle waged against the State (in this case, Turkey) and is included in the list of persons, groups and entities annexed to the … Common Position [2001/931], and the foreign national thereby actively supported its armed struggle in a prominent position? (Case C-101-09)

(2)      If Question 1 is to be answered in the affirmative: does exclusion from recognition as a refugee under Article 12(2)(b) and           (c) of [Directive 2004/83] … require that the foreign national continue to constitute a danger?

(3)      If Question 2 is to be answered in the negative: does exclusion from recognition as a refugee under Article 12(2)(b) and               (c) of [Directive 2004/83]… require that a proportionality test be undertaken in relation to the individual case?

(4)      If Question 3 is to be answered in the affirmative:

  • Is it to be taken into account in considering proportionality that the foreign national enjoys protection against deportation under Article 3 of the [ECHR] or under national rules?
  • Is exclusion disproportionate only in exceptional cases having particular characteristics?

(5)      Is it compatible with Directive 2004/83, for the purposes of Article 3 of [Directive 2004/83] …, if

  • the appellant has a right to asylum under national constitutional law even if one of the exclusion criteria laid down in Article 12(2) of the directive is satisfied? (Case C-57/09)
  • the foreign national continues to be recognised as having a right of asylum under national constitutional law even if one of the exclusion criteria laid down in Article 12(2) of the directive is satisfied and refugee status under Article 14(3) of the directive is revoked? (Case C-101/09)
Decision & Reasoning: 

As to the jurisdiction of the Court, in order to apply a uniform interpretation when provisions of international law are replicated in national law as well as EU law the Court  has specific jurisdiction (Para 71). Therefore, even though the national provisions were present prior to the entry into force of the Directive 2004/83/EC in Germany they correspond to those in the Directive and hence there is jurisdiction. Therefore, the questions referred for a preliminary ruling must be answered.

Firstly the Court observed the way in which Directive 2004/83/EC should be interpreted: in light of its general scheme and purpose, and in a manner consistent with the 1951 Geneva Convention and other relevant treaties, and consistent with the fundamental rights recognised by the Charter. Firstly the Court examined the acts commited by organisations annexed to the EU Common Position 2001/931 to see whether they fell within categories of serious crimes and held that they do fall within the scope of non-political serious crimes under Article 12(2)(b) and c). International terrorist acts are, generally speaking and irrespective of any State participation, contrary to the purposes and principles of the UN. Therefore the competent authorities in Member States can apply Article 12(2)(c) to a person who, in the course of his membership of such an organisation, has been involved in terrorist acts with an international dimension (Para 84). But does it permit exclusion if the person has actively supported the armed struggle waged by the organisation, possibly occupying a prominent position within that organisation?  The Court found that the competent authority must firstly undertake for each individual case, an assessment of the specific facts within its knowledge, with a view to determining whether the acts committed by the person in question fall within the exclusion clauses. Para 88: The mere fact that a person is a member of one of these organisations cannot automatically mean that the person must be excluded from refugee status. The Court noted that there was no direct relationship between Common Position 2001/931, the Framework Decision 2002/475 and Directive 2004/83. However the terrorist nature of that group must be taken into account when determining initially whether that group has committed acts falling within the scope of the exclusion clauses.  Before a finding can be made the grounds of exclusion apply it must be possible to attribute to the person concerned a share of responsibility for the acts committed by the organisation in question while that person was a member (Para. 95).  This must be assessed in light of both objective and subjective criteria. Factors to assess include: the true role played by the person concerned in perpetration of the acts in questions; his position within the organisation; the extent of knowledge he had; or was deemed to have, of its activities; any pressure to which he was exposed; or other factors likely to have influenced his conduct (Para 97). If the person has a prominent position within the organisation there can be a  presumption that the person has individual responsibility but it nevertheless remains necessary to examine all the relevant circumstances before excluding that person from refugee status pursuant to Article 12(2)(b) or (c).

 

As to the second question the Court made the distinction between  Article 12(2) of the Directive and Article 14(4)(a) of the Directive which takes into consideration whether a person may currently pose a danger to the Member State concerned (Para 101). It also referenced Article 21(2) of the Directive and Article 33(2) of the 1951 Geneva Convention in relation to non-refoulement. Article 12(2)(b) and (c) apply only in relation to crimes committed outsider the country of refuge prior to admission and are linked to those undeserving of protection which refugee status entails. Exclusion from refugee status under Article 12(2) is not conditional on the person concerned representing a present danger to the host Member State (Para 105). As regards the third question the Court held that exclusion pursuant to Article 12(2)b) and c) is not conditional on a proportionality test being undertaken. It is important to the note the distinction the Court made between exclusion from refugee status and the separate question of whether a person can be deported to his country of origin (Para 110). In light of the other questions the fourth question was not addressed. In response to the fifth question the Bundesverwaltungsgericht want to know whether it was compatible with Directive 2004/83, for the purposes of Article 3 of that Directive, for a Member State to recognise that a person excluded from refugee status pursuant to Article 12(2) has a right of asylum under its Constitutional law. The Court held that ‘in view of the purposes underlying the grounds for exclusion laid down in that Directive, which is to maintain the credibility of the protection system provided for in that Directive in accordance with the 1951 Geneva Convention, the reservation in Article 3 of that Directive precludes Member States from introducing or retaining provisions granting refugee status under Directive 2004/83 to persons who are excluded from that status pursuant to Article 12(2)(Para 115).  However the Court noted that it does not preclude States from applying another kind of protection outside the scope of the Directive. As long as a clear distinction is made between national protection and protection under Directive 2004/83 they do not infringe the system provided by that Directive.

Outcome: 

The Court ruled that:

1.      Article 12(2)(b) and (c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that:

  • the fact that a person has been a member of an organisation which, because of its involvement in terrorist acts, is on the list forming the Annex to Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and that that person has actively supported the armed struggle waged by that organisation does not automatically constitute a serious reason for considering that that person has committed ‘a serious non-political crime’ or ‘acts contrary to the purposes and principles of the United Nations’;
  • the finding, in such a context, that there are serious reasons for considering that a person has committed such a crime or has been guilty of such acts is conditional on an assessment on a case-by-case basis of the specific facts, with a view to determining whether the acts committed by the organisation concerned meet the conditions laid down in those provisions and whether individual responsibility for carrying out those acts can be attributed to the person concerned, regard being had to the standard of proof required under Article 12(2) of the directive.

2.      Exclusion from refugee status pursuant to Article 12(2)(b) or (c) of Directive 2004/83 is not conditional on the person concerned representing a present danger to the host Member State.

3.      The exclusion of a person from refugee status pursuant to Article 12(2)(b) or (c) of Directive 2004/83 is not conditional on an assessment of proportionality in relation to the particular case.

4.      Article 3 of Directive 2004/83 must be interpreted as meaning that Member States may grant a right of asylum under their national law to a person who is excluded from refugee status pursuant to Article 12(2) of the directive, provided that that other kind of protection does not entail a risk of confusion with refugee status within the meaning of the directive.

Subsequent Proceedings : 

See the Hungarian Helsinki Committee Publication: The Luxembourg Court: Conductor for a Disharmonious Conductor? Mapping the national impact of the four initial asylum-related judgments of the EU Court of Justice available at: http://helsinki.hu/wp-content/uploads/The-Luxemburg-Court-06-04-2012-final.pdf This looks at the impact of this Judgment at the national level.

Observations/Comments: 

Advocate General Mengozzi’s  Opinion is insightful in showing how the Qualification Directive must be consistent with the 1951 Geneva Convention and the Opinion takes into account the conclusions adopted by UNHCR’s Executive Committee as well as it’s Handbook.

In the Court’s judgment para. 115 is unusual in holding that States cannot introduce or retain provisions under Article 3 granting refugee status under Directive 2004/83 to persons who are excluded from that status pursuant to Article 12(2) and it refers to the credibility of the protection system in that regard. This is one of the first times that the Court has ever addressed the meaning of Article 3 which allows States to introduce or maintain more favourable conditions as long as they are compatible with the Directive. Arguably, such an approach will be problematic if the provision is not strictly in accordance with international law.

Other sources cited: 

The judgment refers to relevant resolutions of the UN Security Council including: Resolution 1373/2001 and Resolution 1377(2001) and the UN Charter; Common Position 2001/931/CFSP; Framework Decision 2002/475/JHA

The Advocate General’s Opinion cites the following amongst others:

The UNHCR Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003; Prof. Hathaway The Rights of Refugees under International Law, Cambridge University Press, 2005

Grahl-Madsen, Status of Refugees; Goodwin-Gill and McAdam, The Refugee in International Law, Oxford University Press, 3rd edition

Special Rapporteur on the promotion and the protection of human rights and fundamental freedoms while countering terrorism, report of 15 August 2007; Global consultations on International Protection, 3-4 May 2001

Halberstam and Stein, The United Nations,the European Union and the King of Sweden: Economic sanctions and individual rights in a plural world order, in Common Market Law Review

Authentic Language: 
German
Country of preliminary reference: 
Germany
National / Other Legislative Provisions: 
UNCAT - Art 3
Germany - Grundgezets (Basic Law) - Art 16a
Germany - AsylvfG (Asylum Procedure Act)
Germany - AufenthG (Residence Act)
Germany - Auslandergesetz